Calcutta High Court (Appellete Side)
Anjali Bhattacharjee & Ors vs Kalyan Kumar Deb & Anr on 17 December, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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17.12.2018.
Item no. 52 (MCL).
Court No. 1
ap/pd
S.A.T. No. 189 of 2017
With
CAN 5219 of 2017
Anjali Bhattacharjee & Ors.
Versus
Kalyan Kumar Deb & Anr.
Mr. Prabal Kumar Mukherjee, ld. Sr. Advocate,
Mr. Anirban Ghosh.
..For the Appellants.
Mr. Sumit Roy.
...For the Respondents.
In Re: S.A.T. No. 189 of 2017 Being aggrieved by and dissatisfied with the judgment and decree dated 20th day of March, 2017 passed by the learned Judge, 9th Bench, City Civil Court, Calcutta in Title Appeal No. 29 of 2011 reversing the judgment and decree dated 14th day of December, 2010 passed by learned Judge, 4th Bench, Small Causes Court at Calcutta in Ejectment Suit No. 477 of 2001, the instant appeal has been filed by the appellants.
This appeal will be heard on the following substantial questions of law:-
(i) Whether the learned Judge in the Court of appeal below was correct in reversing the 2 decree dismissing the suit to that of a decree of eviction by shifting the burden of proof of adequacy of the alternative accommodation of the plaintiffs upon the defendants/appellants contrary to the statutory mandate that it was for the plaintiffs to aver and proof that they did not have and were not in possession of suitable alternative accommodation before they were entitled to get a decree for eviction on the ground of reasonable requirement.
(ii) Whether the court of appeal below committed substantial error in coming to a conclusion that the plaintiffs were entitled to a decree of eviction on the basis of the commissioner's report being Exhibit 13, although the Commissioner's report itself categorically proved that the plaintiffs were in possession of adequate number of rooms at their dwelling houses.
(iii) Whether the court of appeal below committed substantial error of law in not considering the composition of the family of the plaintiffs 3 and the availability of the suitable alternative sufficient accommodation at 67B, Beadon Street at Kolkata, which was within a distance of 10 km from the suit premises.
In Re: CAN 5219 of 2017 (Injunction/Stay) This is an application for stay of all further proceedings in Ejectment Execution Case No. 74 of 2017 pending in the Court of learned Judge, 4th Bench, Small Causes Court at Calcutta.
Mr. Sumit Roy, learned Advocate has entered appearance on behalf of all the respondents and accepts service of the application. According to Mr. Roy, he does not have any objection if the application is disposed of pending hearing of the appeal but he vehemently argues that as the appellants are the tenants in respect of a very valuable property at 67B, Beadon Street, which is the heart of the city, reasonable occupational charges should be paid by them.
Mr. Mukherjee, the learned Senior Advocate appearing for the appellants submits that his clients are already paying Rs.10,000/- (Rupees ten thousands only) per month as occupational charges in respect of the 4 tenanted property pursuant to the direction of the learned Court of appeal below.
In view of the facts and circumstances, let there be a stay of all further proceedings in Ejectment Suit No. 74 of 2017, which is pending in the Court of learned Judge, 4th Bench, Small Causes Court at Calcutta provided the appellants continue to deposit the occupational charges @ Rs.10,000/- per month in the Executing Court below.
This interim order shall continue for a period of three weeks after the reopening of the Court after the ensuing Christmas Vacation.
Liberty is given to the parties to pray for extension, vacation and/or variation of this order upon notice to other side.
Since Mr. Sumit Roy, the learned Advocate has already entered appearance on behalf of the respondents, service of appeal upon the respondents stands dispensed with.
Let the matter appear before the appropriate Bench one week after the reopening of the Court after the ensuing Christmas Vacation.
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Liberty is given to the parties to mention the matter for inclusion in the list for hearing before the appropriate Bench.
(Debasish Kar Gupta, C.J.) (Shampa Sarkar, J.)